Office
of the Attorney General of Texas

Mr.
Max J. Werkenthin
Office of the General Counsel
The University of Texas System
201 West Seventh Street
Austin, Texas 78701-2981

Open
Records Decision No. 651

Re: Whether
research data produced by university faculty is "public information"
subject to the Open Records Act, Gov't Code ch. 552 (RQ-752)

Dear Mr. Werkenthin:

On behalf of
the Board of Regents of The University of Texas System (the "university"),
you have requested our opinion regarding the availability of certain information
under the Open Records Act, Government Code chapter 552 (the "act").
The university has received two requests for similar types of information.
You initially question whether the requested information is "public
information" subject to the act. In the event we determine that the
requested information is subject to the act, you assert that section 552.101
of the Government Code, in conjunction with section 51.914 of the Education
Code, excepts the requested information from required public disclosure.
We will begin by describing the requested information.

First, the university
received a request for information collected by two employees of the university,
Dr. David M. Hillis and Mr. Paul T. Chippindale, in their research of the
Barton Springs salamander. Specifically, the requestor seeks the "opportunity
to review and copy all field notes, raw data, and other background information"
used in compiling three Central Texas salamander studies the Texas Parks
and Wildlife Department submitted to the federal Fish and Wildlife Service;
the studies were published in 1989, 1990, and 1992.<1>
You inform us that the studies are based on work Dr. Hillis and Mr. Chippindale
performed under a contract between the university and the Texas Parks and
Wildlife Department.

The requestor
also seeks an opportunity to review and copy all field notes, raw data,
and other background information used in compiling an article, which Dr.
Hillis and Mr. Chippindale co-wrote with Mr. Andrew H. Price of the Texas
Parks and Wildlife Department, concerning a new species of salamander;<2>
the article was published in Herpetologica in 1993. You aver that
the Herpetologica article "is an example of a scholarly writing
by faculty members that is neither commissioned by [the university] nor
a [university] work for hire." Rather, you state that publication
of the article in a scholarly journal is "a part of the peer review
process" the Texas Parks and Wildlife Department required in its contract
with the university for the services of Dr. Hillis and Mr. Chippindale.

Second, the
university received a request for information concerning certain research
undertaken by Dr. Louis Morejohn, an assistant professor in the Department
of Botany. Specifically, the requestor seeks "[a]ll correspondence,
contracts, notes, summaries, written opinions, evaluations and other documents
relating to the research of Dr. Louis Morejon [sic] on Benlac or
Benomyl."<3> You explain
that Dr. Morejohn (and his assistant) performed the research under a contract
between the university and a corporate sponsor, E.I. Du Pont de Nemours
and Company. Under the contract, the corporate sponsor will receive a report
of the research results.

You refer to
the university's contracts with the Texas Parks and Wildlife Department
and E.I. Du Pont de Nemours and Company as "sponsored research contracts."
Although the university executes a sponsored research contract with the
sponsor--such as the Texas Parks and Wildlife Department or E.I. Du Pont
de Nemours and Company--you indicate that the university's duties with
respect to the contract are limited.

The reason that
[The University of Texas at Austin ("UT")] is the contracting
party in most sponsored research projects undertaken by faculty researchers
is the prohibition in the Texas Constitution against use of state resources
except for public purposes and in return for proper compensation. The Board's
Rules, Part One, Chap. III, Section 31, require that no UT resources may
be used in performance of a contract or grant unless it is administered
and controlled by the UT institution. Further, no UT employee can enter
into any outside employment unless the nature of the work is approved by
UT administration. Board of Regent's Rules, Part One, Chap. III, Section
13.7. Because most sponsored research projects undertaken by UT faculty
members will require use of UT resources, these contracts are entered into
in the name of the UT institution, rather than in the name of the individual
faculty investigator.

For the reason
explained above, it is typical in sponsored research contracts or grants
for the UT institution to be named as the performing party, even though
the only duties actually performed by the UT institution are to see that
the work is performed and to act as fiscal agent to handle the funding
of the work. UT institutional procedures require the individual faculty
research[er] to be responsible for the actual performance of the contracted
research and the final product. The Handbook of Operating Procedures of
the University of Texas at Austin, at Section 5.08.2, specifies that faculty
members are responsible for making the original proposals to perform sponsored
research and also for the management of the project. The UT Procedures
further state that all such proposals must be approved by UT administration
and that UT will be responsible for performance of the work and fiscal
management of funds. However, Section 5.10 of the UT Procedures states
that it is the responsibility of each research investigator to maintain
the integrity of projects by keeping accurate records of all experimental
protocols, data, and findings.<4>

Letter from
Max J. Werkenthin, Office of General Counsel, The University of Texas System,
to The Honorable Dan Morales, Attorney General, State of Texas (June 27,
1994) at 4-5 (footnote added); cf. Letter from Max J. Werkenthin,
Office of General Counsel, The University of Texas System, to The Honorable
Dan Morales, Attorney General, State of Texas (June 13, 1994) at 4.

All of the university
employees whose research data has been requested voluntarily have provided
the university with the requested information or representative samples
of the requested information for the limited purpose of preparing your
request for an open records decision from this office. You have included
copies of the information with your requests. See Gov't Code §
552.301(b)(3) (requiring governmental body that requests attorney general
decision on open records request to supply to attorney general specific
information requested).

As a threshold
matter, you claim that the requested information is not public information
subject to the act. Consequently, you believe that the university need
not release the requested information to the requestor. You premise your
argument that the requested information is not public information subject
to the act on your assertion that the information is not intellectual property
in which, pursuant to the university's intellectual property policy, the
university may assert an interest.

In 1985 the
legislature adopted Senate Concurrent Resolution 92, directing "the
governing board of each state institution of higher education, . . . ,
to adopt a written intellectual property policy regarding the ownership,
patenting, copyrighting, control, licensing, and other use of inventions
of employees of the institution . . . ."<5>
Tex. S. Con. Res. 92, 69th Leg., R.S., 1985 Tex. Gen. Laws 3420, 3420.
The resolution defines "intellectual property policy" as "a
policy regarding the ownership, patenting, copyrighting, control, licensing,
and use of an invention, and 'invention' includes a discovery, innovation,
improvement or research finding." Id.

With certain
exceptions, the university's intellectual property policy applies to all
university employees, among others. The University of Texas System Board
of Regents, Intellectual Property Policy & Guidelines § 2.1, at
5 (1993). The policy permits the university's board of regents to assert
ownership in "intellectual property of all types (including, but not
limited to, any invention, discovery, trade secret, technology, scientific
or technological development, and computer software) regardless of whether
subject to protection under patent, trademark, copyright, or other laws."
Id. § 2.2, at 5. Section 2.3 excepts "scholarly writing"
from the category of intellectual property in which the board of regents
may assert an interest unless The University of Texas System or a component
institution has commissioned the work or unless the work is a work for
hire for The University of Texas System or a component institution. Id.
§ 2.3, at 6; see also id. § 2.4, at 6.

You indicate
that the research Dr. Hillis and Mr. Chippindale conducted for the Texas
Parks and Wildlife Department is an example of sponsored research. Similarly,
the research Dr. Morejohn conducted on Benlac or Benomyl for E.I Du Pont
Du Nemours and Company is, you claim, an example of sponsored research.
The information in both of these situations was compiled pursuant to a
contract between the university and a separate entity; in the case of Dr.
Hillis and Mr. Chippindale, the university contracted with the Texas Parks
and Wildlife Department, while in the case of Dr. Morejohn, the university
contracted with E.I. Du Pont de Nemours and Company. Because sponsored
research is not commissioned by the university, you continue, section 2.3
of the university's intellectual policy does not authorize the board of
regents to claim an intellectual property interest in the requested data.

You additionally
indicate that the requested field notes and raw data Dr. Hillis and Mr.
Chippindale used in writing the article published in Herpetologica
were used in the preparation of a scholarly writing that was neither commissioned
by the university nor a work for hire for the university. Consequently,
you contend that section 2.3 of the university's intellectual property
policy does not authorize the board of regents to assert an intellectual
property interest in the information. For purposes of this decision, we
will assume that your interpretation and application of the university's
intellectual property policy is correct. Accordingly, we assume that section
2.3 of the policy excepts all of the requested information from the board
of regent's general right to assert an intellectual property interest in
intellectual property created by university employees.

We do not believe,
however, that the status of the requested information for purposes of the
university's intellectual property policy is relevant to a consideration
of whether the information is public and subject to the act. This office
has stated on numerous occasions that a governmental body may not promulgate
a rule designating information as confidential to except the information
from required public disclosure under section 552.101 of the Government
Code. See, e.g., Open Records Decision Nos. 594 (1991)
at 3, 484 (1987) at 2, 392 (1983) at 2. Similarly, we do not believe a
governmental body may promulgate rules or a policy exempting certain information
from the reach of the act unless the governmental body is explicitly, statutorily
authorized to do so. We do not believe the legislative directive to institutions
of higher education to formulate an intellectual property policy authorizes
the institutions to exempt information from the scope of the act.<6>

At the time
the university received these requests, section 552.021(a) of the Government
Code defined information as "public information" if

under a law
or ordinance or in connection with the transaction of official business,
it is collected, assembled, or maintained:

(1) by a governmental
body; or

(2) for a governmental
body and the governmental body owns the information or has a right of access
to it.<7> [Footnote added.]

Thus, to determine
whether information is public under the act we apply a two-part inquiry.
Initially, we must consider whether a governmental body collected, assembled,
or maintains the information in connection with the transaction of official
business. If we find that particular information is not public and subject
to the act under the first inquiry, we must consider whether the information
was collected or assembled or is maintained in connection with the transaction
of official business for the governmental body, and the governmental body
either owns the information or is entitled to access it.

Information
related to the transaction of official business is subject to the act whether
the information is maintained by an individual member of the governmental
body or in the governmental body's administrative offices. See Open
Records Decision No. 425 (1985) at 2. In our opinion, the requested
information relates to the transaction of official business. We understand,
as you point out, that the university may not assert an intellectual property
interest in the requested information. We further understand, as you state,
that in the event a university faculty member leaves the university, the
university generally forwards to the researcher's new institution any unexpended
sponsored research funds attributable to that faculty member's research
in progress.

Nevertheless,
as you also suggest, a sponsored research project involves the use of state
resources, e.g., university laboratory equipment, university
computer equipment, and the time of university personnel. The university,
as a signatory to a sponsored research contract, is, you state, "responsible
for performance of the work and fiscal management of the funds." We
consequently conclude that research data produced by university faculty
pursuant to a contract between the university and a third party is information
that is collected, assembled, or maintained by a governmental body and
that is connected to the transaction of official business. Thus, the information
requested here is public information subject to the act.<8>
We proceed, therefore, to consider whether the information is specifically
excepted from required public disclosure.

You believe
the requested information is excepted from required public disclosure under
section 552.101 of the Government Code. Section 552.101 excepts information
that is "confidential by law, either constitutional, statutory, or
by judicial decision." You aver that Education Code section 51.914
is a statutory source of confidentiality for the requested information.

Section 51.914
of the Education Code provides:

In order to
protect the actual or potential value, the following information shall
be confidential and shall not be subject to disclosure under Chapter 552,
Government Code, or otherwise:

(1) all information
relating to a product, device, or process, the application or use of such
a product, device, or process, and all technological and scientific
information (including computer programs) developed in whole or
in part at a state institution of higher education, regardless of whether
patentable or capable of being registered under copyright or trademark
laws, that have a potential for being sold, traded, or
licensed for a fee;

(2) any information
relating to a product, device, or process, the application or use of such
product, device, or process, and any technological and scientific information
(including computer programs) that is the proprietary information of a
person, partnership, corporation, or federal agency that has been disclosed
to an institution of higher education solely for the purposes of a written
research contract or grant that contains a provision prohibiting the institution
of higher education from disclosing such proprietary information to third
persons or parties; or

(3) the plans,
specifications, blueprints, and designs, including related proprietary
information, of a scientific research and development facility that is
jointly financed by the federal governmental and a local governmental or
state agency, including an institution of higher education, if the facility
is designed and built for the purposes of promoting scientific research
and development and increasing the economic development and diversification
of this state. [Emphasis added.]

Clearly, all
of the requested information is "scientific information . . . developed
in whole or in part at a state institution of higher education." See
Educ. Code § 51.914(1). We must consider, however, whether the requested
information has "a potential for being sold, traded, or licensed for
a fee." See id.

You state that
the requested data related to Dr. Hillis' and Mr. Chippindale's research
that identifies the DNA sequences of a new species of salamander has the
potential for being sold, traded, or licensed for a fee. Likewise, you
assert that the requested data related to Dr. Morejohn's research has the
potential for being sold, traded, or licensed for a fee, although you do
not explain why you believe Dr. Morejohn's data has such potential. Additionally,
we note that Dr. Morejohn stated in a letter that he expected no inventions
to arise from his research.

The legislature
added the substance of section 51.914 to the Education Code in 1985.<9>See Act of May 27, 1985, 69th Leg., R.S., ch. 818, § 2, 1985
Tex. Gen. Laws 2874, 2875. The bill that proposed the confidentiality provision,
now section 51.914, also proposed to add a section to the Education Code
authorizing the board of regents of the university to establish a Center
for Technology Development and Transfer. See id. § 1. The purpose
of the Center for Technology Development and Transfer is to promote high
technology industry. See Educ. Code § 65.45; Senate Comm. on
Education, Bill Analysis, C.S.S.B. 840, 69th Leg. (1985). The confidentiality
granted in Education Code section 51.914 is not, however, limited to information
of the Center for Technology Development and Transfer.

We found nothing
indicating how the legislature intended a court or this office to determine
whether particular scientific information has "a potential for being
sold, traded, or licensed for a fee." Whether particular scientific
information has such a potential is, of course, a question of fact that
is not appropriate to the opinion process. E.g., Attorney
General Opinions DM-98 (1992) at 3, H-56 (1973) at 3, M-187 (1968) at 3,
O-2911 (1940) at 2. Instead, we believe the university must make that determination,
and the university's determination is subject to review by a court.

We must, therefore,
assume the correctness of the university's determination that the requested
information has the potential for being sold, traded, or licensed for a
fee. Cf. Open Records Decision Nos. 592
(1991) at 2-3, 552 (1990) at 5, 435
(1986) at 3-4. With respect to the requested information related to Dr.
Hillis' and Mr. Chippindale's research, however, the university does not
appear to have determined that section 51.914 of the Education Code deems
confidential information that does not identify DNA sequences. Furthermore,
you have not raised any other exceptions to disclosure that may apply.
Accordingly, the university must release to the requestor information from
Dr. Hillis' and Mr. Chippendale's research that does not identify DNA sequences.
We further conclude, relying on the university's determinations, that the
information related to Dr. Hillis' and Mr. Chippendale's research identifying
DNA sequences and the requested information relating to Dr. Morejohn's
research is confidential under section 51.914 of the Education Code. Therefore,
pursuant to section 552.101 of the Government Code, the university must
withhold the requested information related to Dr. Hillis' and Mr. Chippendale's
research that identifies DNA sequences and the requested information pertaining
to Dr. Morejohn's research.

S
U M M A R Y

Research data
produced by university faculty pursuant to a contract between the university
and a third party is information that is collected, assembled, or maintained
by a governmental body and that is connected to the transaction of official
business. Consequently, the data is public information subject to the Open
Records Act, Government Code chapter 552.

Section 51.914(1)
of the Education Code deems confidential "scientific information .
. . developed in whole or in part at a state institution of higher education"
if the information has "a potential for being sold, traded, or licensed
for a fee." Whether particular scientific information has a potential
for being sold, traded, or licensed for a fee is a question requiring the
resolution of fact issues. This office will therefore rely on the university's
assertion that some of the requested information has this potential. Accordingly,
the university must withhold certain of the requested information under
section 51.914(1) of the Education Code as applied through section 552.101
of the Government Code.

Yours very truly,

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

LAQUITA A. HAMILTON
Deputy Attorney General for Litigation

SANDRA L. COAXUM
Chief, Open Records Division

Prepared by
Kymberly K. Oltrogge
Assistant Attorney General

Footnotes

<1>
You inform us that portions of the requested information already are available
to the public. "The raw data in support of the salamander collection
localities have been entered into a distributional database at [the Texas
Parks and Wildlife Department]. The preserved salamander specimens collected
by [Dr. Hillis and Mr. Chippindale] will [be] available in the Texas Memorial
Museum." We will not consider the availability of this information
here. We assume, however, that the university has informed the requestor
of the availability of this information.(Back to opinion)

<2>
The requestor also asked for field notes, raw data, and other background
information used in compiling two reports by other named researchers concerning
the Edwards Aquifer and Barton Springs and a report by other named researchers
concerning urbanization and water quality in the Austin area. You state
that neither Dr. Hillis, Mr. Chippindale, nor the university has, or has
any connection with, the requested information regarding these reports.
Generally, a governmental body need not obtain, in response to an open
records request, information it does not possess. See Open
Records Decision No. 558 (1990) at 2.(Back to opinion)

<3>
You indicate that a portion of the requested information is public information.
Accordingly, you state that the university will release to the requestor
the information it considers to be public: correspondence and other contractual
documents concerning the subject research that is in the university's custody.(Back to opinion)

<4>
Until World War II, most scientific research conducted at a university
was essentially subsidized by the university itself. Leonard G. Boonin,
The University, Scientific Research, and the Ownership
of Knowledge, in Owning Scientific and Technical Information:
Value and Ethical Issues 253, 260 (Vivian Weil and John W. Snapper eds.,
1989). For many years following World War II, the United States government
was a major source of funds for such research. Id. "The Reagan
administration," however, "as part of a general policy of cutting
back on government programs, sought to reduce" the government's support.
Id. Universities found an alternative source of support in venture
capitalists. Id.

Many "partnerships"
have evolved between universities and commercial corporations, e.g.,
Harvard and Washington University of St. Louis with Monsanto, Massachusetts
General Hospital with Hoechst, and MIT with an institute established by
industrialist Edwin Whitehead. Id. at 261. "In exchange for
providing

substantial
financial support, the companies receive a variety of things, ranging from
patent rights or exclusive licenses to (in the case of the Whitehead Institute)
participation in faculty appointments and control of research areas. In
addition, they may exercise varying degrees of control over publication
of results." Id.

Thus, scientists
on university faculties today rely predominantly on sponsors outside the
university--either governmental or corporate--to fund the scientists' research.
See Rebecca S. Eisenberg, Academic Freedom and Academic Values
in Sponsored Research, 66 Tex. L. Rev. 1363, 1363 (1988). Often, "faculty
members themselves submit grant proposals and establish relationships with
both private and government research sponsors. Indeed, in the initial stages
of applying for project grants, faculty members often interact directly
with potential sponsors with minimal university involvement, although the
university ultimately enters the negotiations and becomes a party to any
grant or contract for the performance of sponsored research on campus."
Id. at 1372.

The university's
participation in the grant or contract is, practically speaking, imperative:

The scale of
modern scientific research requires significant commitments of university
facilities and personnel for academic research projects. Universities obviously
need to decide how to allocate these resources at the institutional level.
. . . When sponsored research takes place on campus using university facilities
and personnel, the university must enter into an agreement with the sponsor
to protect its own interests as well as the interests of the faculty members
doing the research.

<5>
Senate Concurrent Resolution 92 of the 69th Legislature further requires
the governing board of each institution of higher education, by January
1, 1986, to file its intellectual property policy with the Coordinating
Board, Texas College and University System. Tex. S. Con. Res. 92, 69th
Leg., R.S., 1985 Tex. Gen. Laws 3420, 3421. Two years after adopting Senate
Concurrent Resolution 92, in 1987, the legislature enacted section 51.680
of the Education Code, relating to intellectual property policies of institutions
of higher education. See Act of May 23, 1987, 70th Leg., R.S., ch.
772, § 1, 1987 Tex. Gen. Laws 2747, 2747-48. Section 51.680(a) requires
the commissioner of higher education to review the intellectual property
policies filed with the Coordinating Board, Texas College and University
System, pursuant to Senate Concurrent Resolution 92 of the 69th Legislature.

The enactment
of Education Code section 51.680 is one of several measures the 70th Legislature
adopted to encourage the development, at institutions of higher education,
of technologies that may be commercialized. Texas Higher Education Coordinating
Board Division of Research Programs, Intellectual Property Policies in
Texas Institutions of Higher Education 1 (1989). The actions of the 70th
Legislature were motivated by a report of a select committee of the legislature
on higher education, which established as a priority for the state to "'firmly
establish the critical role of higher education as a powerful instrument
for economic development and an indispensable factor in producing a brighter
economic future.'" Id. (quoting 1987 report of select committee
on higher education). (Back to opinion)

<6>
We do not suggest that the university's intellectual property policy assumes
to exempt information from the act.(Back to opinion)

<7>
The 74th Legislature amended several sections of the act. See Act
of May 29, 1995, 74th Leg., R.S., ch. 1035, 1995 Tex. Sess. Law Serv. 5127.
Among other things, the legislature apparently moved the substance of section
552.021(a) to section 552.002(a). See id. § 2, 1995 Tex. Sess.
Law Serv. at 5127. Although the amendments to sections 552.002 and 552.021
took effect September 1, 1995, see id. § 29, 1995 Tex. Sess.
Law Serv. at 5142, they do not apply to a request for information received
prior to the effective date. See id. § 26(a), 1995 Tex. Sess.
Law Serv. at 5142. Because the changes to the definition of "public
information," with respect to the issue before us here, were nonsubstantive,
we believe our conclusion applies to similar requests for information received
after September 1, 1995.(Back to opinion)

<8>
Cf. Progressive Animal Welfare Soc'y v. University of
Wash., 884 P.2d 592, 598-99 (Wash. 1994) (assuming, in general, that
information in university researcher's unfunded grant proposal to National
Institutes of Health is public); Op. La. Att'y Gen. No. 92-94, 1992 WL
610895 (1992) (assuming data compiled by research unit of Southeastern
Louisiana University, funded by private and commercial companies, is public
and subject to Louisiana Public Records Law); Op. Ore. Att'y Gen. No. OP-6217,
1988 WL 416244 (1988) (concluding that data generated by researchers at
Oregon State University in project funded in part by private companies
"plainly constitutes a public 'public record'" subject to state's
public records law).(Back to opinion)